Hewitt v S [2016] 3 All SA 784 (GJ)

Criminal procedure – Bail – Granting of bail pending application for direct access to Constitutional Court – Weighing up of right to bail and whether the Constitutional Court could be seized of the matter – Court granting bail.

The accused in this matter had gone to court to request the extension of his bail pending an application for direct access to the Constitutional Court. While waiting for his application to proceed, he was arrested. It emerged that the investigating officer had refused to accept the application to extend bail.

Held – The effect of the arrest precluded the court from deciding whether to extend bail. It was then a question of whether to grant bail.

The accused had been charged and convicted of a Schedule 6 offence which had since been repealed and re-enacted. He was therefore required to demonstrate that in terms of section 60(1) of the Criminal Procedure Act 51 of 1977, it was in the interests of justice to permit him to be released on bail. He also had to demonstrate that the provisions of section 60(4) were not applicable to him and that exceptional circumstances were present as contemplated in section 60(11)(a).

Having previously been granted bail after he was convicted and sentenced, the accused had complied with all his bail conditions. Nothing had changed to justify a reconsideration of the factors which led the trial court to grant bail on the basis that exceptional circumstances existed and that it was in the interests of justice to grant bail, having due regard to the requirements of section 60(4).

The State’s argument was that the Constitutional Court would not entertain the application for direct access because the issue did not fall within its jurisdiction as circumscribed by section 167 of the Constitution. The issue which the accused wished to raise was that there was new evidence which materially affected the outcome of the case. It was not disputed that the evidence only surfaced after the Supreme Court of Appeal had refused the petition for leave to appeal. The Court found the evidence in question to be relevant and moved on to consider whether seeking to introduce the new evidence and re-open the case would constitute either a constitutional issue or one which raised an arguable point of law of general public importance which ought to be considered by the court as required by section 167 of the Constitution.

The Court had to weigh the right to bail and whether the Constitutional Court could be seized of the matter, not what the outcome might be. If the court were to refuse bail and the accused was successful with his right of access then he would be deprived of his freedom unnecessarily, bearing in mind that he was an elderly person, and the interests of justice would not be served. If, however, bail was granted and the right of access was denied then he would proceed to serve his sentence and there could be no adverse consequence to the interests of justice.

Bail was, therefore, granted to the accused.


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